Often times, when parents separate, they are able to agree to a parenting arrangement that is in their child’s best interests and works well for the parents. In many cases, flexible schedules between the parents work well without conflict until the child is an adult. This is, however, not always the case.
In situations where parents cannot agree to the custody schedule, they need a child custody order. A child custody order sets out the plan for making decisions for the minor child and for determining when and where the child spends time with each parent. For parents who conflict with each other, this is an absolute necessity.
To obtain a child custody order, a parent must file an action with the court for child custody. After filing the action, the other party must be served with the lawsuit and afforded the opportunity to respond. In custody actions, after filing, the parents are almost always required to attend a court ordered mediation in the hopes of resolving their differences and working out a custody schedule. Attorneys may be but are often not included in these mediations. If resolution is reached in mediation, an order dictating the custody arrangement and schedule will be issued by a judge, which resolves the matter.
In the event that the parties are unable to come to an agreement during mediation, and are unable to negotiate their custody schedule, they require a judge to determine their parenting schedule and end up in litigation. In litigation, the parties become adversaries and lose their ability to control and determine their parenting arrangement through negotiation. The conflict is resolved by the judge upon the presentation of evidence to determine what parenting arrangement is in the best interests of the minor child.
The primary issues to be determined by the judge are legal custody and physical custody. Legal custody concerns decision-making for the minor child. Where the child goes to school, the doctor, therapy, dentist, for example, include matters of legal custody. Physical custody, on the other hand, concerns where the child spends the night and how much time each parent is going to spend with the minor child.
Once a child custody order is issued, it is enforceable by the court through the power of contempt. What does this mean? Basically, in a nutshell, if a party violates the custody order, the court has the power to punish the violating party. The court may have a number of options in punishing the offending party including fines, probation, jail time, and attorney’s fees.
If you need to speak with a family law attorney concerning child custody issues, please contact Adkins Law to arrange a consultation.
In North Carolina, when you separate from your child’s other parent, there are a lot of things to consider and plan for. In most cases, it is best to have a consent order entered as to your child custody arrangement, and any child support obligations. A custody order is required to enforce any agreements as to child custody.
In North Carolina, there are two kinds of child custody: legal child custody, and physical child custody. Legal child custody concerns decision making, and what parent is making such decisions as to where the minor child is attending school, what doctor and dental treatments the minor child will have, what religious practices the child will adhere to, and what extracurricular activities and events the child will participate in. Physical custody, on the other hand, concerns what parenting time each parent will spend with the minor children.
Most cases involving child custody are resolved by direct negotiations with the opposing party, and the remainder are resolved through the process of mediation. Most jurisdictions require the parties to attend a mandatory mediation before they may present their child custody case in front of a judge. Mediation is often successful as it gives the parties the ability to maintain a sense of control in resolving and settling their matter. In the event your spouse or partner is unreasonable, and unwilling to settle, your case may be forced into litigation, where the judge determines a child custody arrangement dependent upon the best interests of the minor child.
If you need to speak with a child custody attorney regarding a child custody matter, please contact Adkins Law. We are located in Huntersville NC and are happy to be of service.
A common question that comes up when dealing with child custody issues for service members involves deployments. Can my ex use my past and / or potential future military deployments against me in our custody matter? In North Carolina, in a proceeding for child custody of a service member, a court may NOT consider a parent’s past deployment(s) or possible future deployments as the ONLY basis in determining the best interest of the child. The court MAY consider any significant impact on the best interest of the child regarding the parent’s past or possible future deployments.
Thus, in determining what is in the best interest of the minor child for custody arrangements, military deployments of a parent may be considered as a factor, but may not be the only factor to consider in determining a custody arrangement.
Contact Adkins Law if you wish to discuss your child custody issues with a family law attorney.
When a married couple has a baby, North Carolina law states that both parents are automatically the legal parents of the child. This gives both mother and father all the rights and responsibilities of parenthood. This is not, however, the case with unmarried couples. When an unmarried couple has a child, the relationship between the father and the child is not immediately recognized. If an individual is in this type of situation and desires to have the obligations and benefits of having that parent-child relationship, one must establish paternity.
How to Establish Paternity
There are four basic routes to establishing paternity in the State of North Carolina. The first and most common way of establishing paternity is already being married prior to the time of the child’s birth. The second route to establishing paternity is also in regards to marriage. If the father and mother marry after the child is born, their child is legitimated retroactively, meaning going all the way back to birth.
The two other routes used to establish paternity that do not involve marriage are the following:
Sign an Affidavit of Parentage
Signing the affidavit is a totally voluntary process. An affidavit of parentage is a legally binding document that is very difficult to overturn. Many unmarried couples prefer to sign the affidavit at the hospital or birthing center. Because an affidavit is a sworn statement, the mother and father must sign it in the presence of official witnesses. By signing an affidavit, the mother and father are agreeing that the father is the biological and legal father of the child. This affidavit also establishes the father’s obligation to pay child support and the child’s right to inherit from the father. An affidavit of parentage provides the father with standing to seek a custody order from the court. Lastly, both parents must agree in the affidavit if the father’s name should be added to the birth certificate.
A paternity action can be presented in court by either of the parents, or by a lawyer for Child Support Services (CSS). The parties can settle the case on their own time or they can go to trial. If they choose to proceed into trial, the judge will decide whether the supposed father is the child’s legal and biological father. Either of the parties or the judge may request genetic testing, upon which everyone involved must submit to testing. If the results show a 97% probability of paternity or more, the court will establish paternity. Lastly, the judge will issue a final paternity order and make decisions regarding custody, visitation, and residency.
5 Benefits of Establishing Paternity
o The parents can work together to make decisions that are in the best interest of the child.
o Signing the affidavit secures the father’s right to go to court to ask for custody and visitation.
o The child’s birth certificate will include the mother’s and father’s name.
o The child is guaranteed the ability to access medical records from both sides of the family.
o A child with a legal father has access to benefits, through the father, such as, social security, medical insurance, and other state, federal, and inheritance benefits.
There is a difference between legal child custody and physical child custody. Often this terminology is confused, which can lead to disputes when parents are trying to make major decisions affecting the child. Legal custody essentially means decision making. Physical custody, on the other hand, is where the child physically is – which parent they are spending the night with.
Most parents will share joint legal custody of their child. Thus, they will have equal input into decisions that are made for the child’s upbringing – what school they will attend, where they will go to the dentist, what church they will go to, and what sport they will play in the Fall. Sometimes, parents are not able to agree with each other on these types of issues. This is often the biggest area where disputes arise between parents after an order has been set in place. Some orders contain icebreaker language, which provides that the parents shall work together to make major decision, but that one parent will ultimately have the final decision making authority. Other orders will provide that the parents are each able to make decisions for different issues – dad, for example, may make all educational decisions, while mom makes all medical decisions. Another option is to force the parties to attend binding arbitration (sort of like a private trial) in the event they are unable to reach an agreement on a major decision.
So – what does it mean to have legal custody of my child? How does this impact my relationship with my child? Legal custody provides you with the opportunity to actively provide input and make decisions on how your child is to be raised. Unless one parent is not interested, not involved, or simply unfit to make decisions for the child, this is almost always shared jointly. Regardless of what and how parties feel about each other, it is almost always in the child’s best interest to work together to make joint decisions on their upbringing.
If you need to speak with an experienced family law attorney, please contact Adkins Law. Adkins Law is located in Huntersville and primarily serves Mecklenburg County and the Lake Norman area.
1) Legal Custody: The parent(s) or person(s) who the Judge has appointed to make all the major decisions in the child’s life, such as, decisions about health/healthcare, education, and religion. In North Carolina the child does not have to live with the parent or person who has legal custody of them.
The Judge could appoint two people jointly to have legal custody, known as “Joint Legal Custody,” or one person may be given legal custody, known as “Primary Legal Custody.”
2) Physical Custody: The parent(s) or person(s) who the minor child lives with on a day-to-day basis, who has actual, physical care of the child.
The Judge may appoint two people jointly to have physical custody of the child, this is called “Joint Physical Custody.” The persons or parents who have join physical custody must share time with the child so that each person has regular contact with the child. However, this does not mean that the child must live with one parent/person half of the time and with the other parent/person the other half of the time. Keep in mind it is up to the Judge how much time the child will spend with each parent/person.
The Judge may also appoint one person or parent to have sole physical custody, known as “Primary Physical Custody.” In this situation, one parent or person has the child in their care the majority of the time and the other parent or person may still have regular contact and overnight visits with the child.
3) Exclusive/Sole Custody: This means that only one parent has the form of custody.
4) Joint Custody: This means that two people or both parents share a form of custody.
***A common arrangement for custody is for both parents have joint legal custody and one parent to have primary physical custody, while the other parent has visitation rights.
If you would like to speak with a child custody attorney, contact Adkins Law. We have offices in Huntersville and Charlotte for your convenience.
When a family experiences a separation or divorce, a grandparent sometimes loses contact with their grandchildren through no fault of their own. We are often asked what rights the grandparent has, if any.
In North Carolina, a grandparent has the right to claim visitation with their grandchildren under certain circumstances, even over the objection of one or both parents. There are several statutes that permit a grandparent to maintain an action for visitation of their grandchild:
Understand that biological parents have a 14th Amendment right to care for a nurture their children. This is called the “Peterson presumption” in North Carolina, which provides that custody with a parent is presumed to be in the child’s best interest. The grandparent must overcome this presumption to obtain custody. Therefore, for a grandparent to prevail against a parent in an action for child custody, they must show that the parent(s) is either unfit, has neglected the child(ren), or has engaged in conduct inconsistent with their protected status (i.e., voluntarily giving up custody of a child to a non-parent). Grandparents, and non-parents bringing an action for custody, must prove their case with clear and convincing evidence.
If you have questions regarding grandparent custody and visitation rights in North Carolina, contact Adkins Law. We have offices in Huntersville and Charlotte for your convenience.
By Christopher Adkins
In North Carolina, child custody can be divided into two main elements: legal custody and physical custody. Legal and physical custody can be shared jointly, or can be granted solely to one parent.
Having legal custody of your child means that you are able to make decisions for important things in their lives. Things like where your child will be going to school, what doctor your child will see, and what religious upbringing they will receive – these are examples of legal custody decisions.
When you were married to your spouse, these were typically decisions that you made together. In most situations, the courts want to maintain this joint decision-making. Thus, often, co-parents share joint legal custody and have to mutually agree upon important decisions made involving the child’s upbringing.
Joint legal custody is not, however, always granted. In some circumstances, especially when one parent has been the primary caregiver and is granted sole physical custody, that parent may also be granted legal custody. In other situations, co-parents may be granted joint legal custody, but one parent may have the final decision-making authority on certain issues such as medical decisions, while the other parent may be granted final decision-making authority on certain issues such as education decisions. If a judge feels like the parents are not going to be able to mutually reach decisions on matters in the future, and ongoing conflict may arise between the parents, sole legal custody may be granted to one parent.
Physical custody, on the other hand, refers to where the child physically lives. Like legal custody, physical custody can be shared jointly, or one parent may be granted sole physical custody. Most commonly, when both parents are involved in the child’s life, they are awarded joint physical custody, which may not involve an exact 50/50 time split, but something very close.
If one parent is awarded the child most of the time, that parent is said to have primary physical custody, and the other parent is usually granted visitation or parenting time. A common example of this type of physical custody arrangement would be when one parent has parenting time with the child every other weekend. It is common for a parent with visitation rights to be granted several weeks of parenting time with the child during summer break to make up for any time they are not able to spend with the child during the school year.
If you have questions regarding child custody and need to speak to a family law attorney, please contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne, and primarily serves Mecklenburg County, south Charlotte, and the Lake Norman area.